Citation Nr: 21022587 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 10-45 742 DATE: April 16, 2021 ORDER Entitlement to service connection for a psychiatric disorder is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Appellant’s psychiatric disorder began during active service or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for a psychiatric disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Appellant served on active duty for training (ACDUTRA) from March 1979 to June 1979, and on active duty from March 1980 to July 1981. On appeal is a February 2010 rating decision that denied service connection for a “mental condition” that the Board of Veterans Appeals (“Board’) subsequently re-characterized as a psychiatric disorder. A Board hearing was held in this matter in July 2012 and a transcript of the hearing has been associated with the claims file. The Veterans Law Judge who held that hearing is no longer available to participate in the Appellant’s appeal. The Appellant was given another opportunity to appear at a hearing before a Veterans Law Judge who would decide the claim. However, the Appellant responded in June 2017 that he did not wish to testify at an additional Board hearing, and the Board has proceeded with adjudication. When the case initially appeared before the Board in May 2014, the Board found that new and material evidence had been received to reopen the claim for service connection for a psychiatric disorder and remanded for additional development. The case has since been remanded by the Board four additional times (March 2015, January 2016, September 2017, and April 2018) for additional development, to include obtaining outstanding records, obtaining a VA examination, and obtaining Addendum medical opinion(s). The matter has now been returned to the Board for appellate review. Duty to Notify and Assist The Veteran has not raised any issues with the duty to notify. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board”). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. Also of record is a VA examination conducted in November 2014 and Addendum medical opinions obtained in April 2015, October 2017, and June 2019. The Veteran has not referred to any additional, unobtained, relevant, available evidence. Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA’s duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). 1. Entitlement to service connection for a psychiatric disability The Appellant contends he is entitled to service connection for a psychiatric disorder. More specifically, he contends in his Notice of Disagreement (NOD) and in his substantive Appeal that his mental condition began in service. The Appellant is not service-connected for any condition. The question for the Board is whether the Appellant has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the preponderance of the evidence weighs against finding that the Appellant’s psychiatric disorder, however diagnosed during the appellate period, began during service, or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). There is simply no evidence that may serve as a medical nexus between the Appellant’s service and his psychiatric disorder. Service treatment do not reflect complaints, diagnosis, or treatment for any psychiatric disorder. The December 1978 enlistment Report of Medical Examination shows the Veteran had a normal psychiatric examination with no defects or diagnoses noted. An April 1979 separation (from ACDUTRA) Report of Medical Examination shows the Appellant had a normal psychiatric examination with no defects or diagnoses noted. An April 1981 “Chapter 9” Report of Medical Examination shows the Appellant had a normal psychiatric examination, with no defects or diagnoses noted. The companion April 1981 Report of Medical History shows the Appellant specifically denied depression or excessive worry, nervous trouble of any sort, and frequent trouble sleeping. Military personnel records are associated with the Appellant’s claim file. A June 1981 record reflects the Appellant was discharged due to alcohol or drug abuse, noting he failed the Drug and Alcohol Program. The Appellant’s DD-214 is also associated with the Appellant’s claims file. It reflects the reason for the Appellant’s separation from service as “alcohol or other drug abuse.” Post service private treatment records are associated with the Appellant’s claim file. In summary, these records reflect the Appellant had been hospitalized on numerous occasions for mental health and substance abuse. A December 1990 record from St. Mary’s Hospital shows the Veteran was admitted November 15, 1990 and discharged (against medical advice) on December 1, 1990. He was admitted with severe depressive symptoms, suicidal ideation, death wishes, and feeling that he is going to lose control of himself. He was severely anxious, very depressed, unable to sleep, was blaming himself and wanted to get away from the surroundings that induce him to use drugs especially cocaine and alcohol. He stated that he has a six-year-old son and he is responsible for him and wants to care for him without using drugs and alcohol. He reported no previous psychiatric treatment except for a period of outpatient treatment when he was in the army about ten years ago for drug abuse. His final diagnoses were major affective disorder, single episode, severe; substance abuse disorder, multiple drugs; and, personality disorder, mixed type. A May 1995 record from St. Mary’s Hospital shows he relapsed and was admitted for alcohol and cocaine dependency. Private treatment records from St. Anthony’s Health Center include a June 1995 record that shows the Appellant was admitted for chemical dependency. He reported drinking up to 2 six-packs of beer per day; using crack cocaine daily; and, that his drug and alcohol indulgence have contributed to family alienation and job losses. It was also noted that he grew up on a farm which his mother sold after his father’s death recently and this was a sense of loss. He was also quite upset because he lost his house, which burned down accidently three weeks ago, and his four kids were now in his niece’s care and custody. Private treatment records from the Gateway Foundation show the Appellant was in treatment from May 14, 2001 thru May 19, 2001 for detox. Private treatment records from St. Elizabeth’s Hospital show in December 2002, the Appellant was hospitalized with a diagnosis of major depression and it appears to note the depression over the loss of parents. January 2003 records show the Appellant was again hospitalized with an admitting diagnosis of suicidal depression, and he was discharged with a final diagnosis of major depression, recurrent, and polysubstance dependency, alcohol and cocaine. February 2007 records show the Appellant was again hospitalized, stating he was suicidal after losing his apartment that apparently had burned down in a fire and he claimed that he was now homeless. He was diagnosed with substance induced mood disorder with psychotic features, cocaine dependence and malingering. The examiner noted the Veteran was generally vague about symptoms, evasive and guarded. Post service VA treatment records from the St. Louis VAMC are associated with the Appellant’s case file. In summary, these records show the Veteran has been treated for his mental health and substance abuse over the years. A July 1999 psychiatry admission note reflects the Appellant provided the following history. The Appellant was released from prison in December 1998 after serving a 2 years sentence for drug possession. He went into service at age 18 for 3 years but was discharged for drug abuse, chapter 9. He stated he started with marijuana in service, and smokes marihuana daily, as much he can afford. He also gets drunk daily and smokes cocaine. He never went through a rehab program and recalls he was on some medicine for depression and being “hyper” in jail but does not know the name. He denied hearing voices; denied delusions; has no history of suicide attempt; denied any violence to others; and stated he feels depressed most of the time. He cries off and on, sleeps poorly, and had no medical problems. A February 2007 record reflects the Veteran was seen for complaints of anxiety about his housing condition. He was reassured his anxiety is situational and thus medication is not necessary at this time. He was diagnosed with substance-induced psychotic disorder – depressed, r/o major depressive disorder severe, recurrent with psychosis, h/o polysubstance abuse/dependency (alcohol, cocaine, marijuana). A July 2009 record reflects the Appellant called with requests for renewal of medications (trazadone and simethicone) and was told he needs to have trazodone refilled by psych as he was already on two psychiatric medications. An October 2009 psychiatry note reflects the Veteran’s spouse reported he had been violent in the home towards her while intoxicated and that this last occurred one month ago. The examiner noted the Appellant attends NA [narcotic anonymous] outside of the VAMC weekly but does not have a sponsor. For depression, he takes prescribed medication (bupropion and citalopram) but he has been off these meds for 2 months. Today he reports that his depressive symptoms are still present, he has more irritability than depression, and his wife describes his mood changes fast and he is unstable with a lot of anxiety. A June 2017 psychiatry note reflects a diagnosis of unspecified depressive disorder. The Veteran underwent a VA examination in November 2014. The examiner diagnosed the Veteran with: (1) major depressive disorder, recurrent, moderate with mood incongruent psychotic features; (2) alcohol use disorder, in sustained full remission per his report; (3) cocaine use disorder, in sustained full remission, per his report; (4) cannabis use disorder; and (5) tobacco use disorder. The examiner stated although the Appellant appears to experience moderate to severe recurrent depression with psychotic features, and although he also has a long standing history of alcohol and cocaine dependence, there is no evidence in his records of any mental health treatment during his military service. He was separated from the Army for drug abuse. Further, there was no direct link between his current symptoms and his prior military service. Although ge does experience mental illness, there is no clear nexus between his military service and his illness. (A March 2015 Board Remand found this opinion inadequate, noting that although this examiner stater there was no link during today’s exam between his current symptoms and his prior military service, the examiner did not explain why this is so.) In an April 2015 Addendum medical opinion, the same examiner from the November 2014 VA examination opined that the Appellant’s current depression and anxiety are less likely than not (less than 50% probability) originated or otherwise etiologically related to his service. As rationale, the examiner stated there is no record of any psychiatric treatment while in the Army. Furthermore, the only mental health diagnosis that was documented in the Army was drug and alcohol abuse. The Veteran's depression was not reported until 2002, decades after his military discharge. The Veteran himself denied any depression or anxiety during the military. In an October 2017 Addendum medical opinion, a new VA examiner opined that he had no reason to opine differently [than the previous examiner] stating “the probability of service causality or aggravation is less likely than not.” As rationale, this examiner stated there are no obvious treatment records for depression until 2006 and it seems more likely than not that he did not perceive significant pathology until around the 2006 date, more than a year after discharge. In a June 2019 Addendum medical opinion by the same examiner who rendered the November 2014 medical opinion, the examiner opined that the Appellant’s currently diagnosed major depression is less likely than not related to service or had its onset in service. As rationale, the examiner stated (1) The Appellant denied any depression on his ETS [separation] exam dated in April 1981; (2) The Appellant’s lay statement about his belief that he had depression in the military has not been consistent in the records. The earliest treatment records found in relation to depression are from 1990 and these records suggest that it is the Veteran’s first experience with MH [mental health] treatment, besides drug treatment in the past. 1990 is almost 10 years AFTER military discharge; and, (3) The Appellant had approximately 10 years of drug use between military discharge and his presentation for MH treatment, and the discharge summary from 1990 clearly attributes his depression to his difficulty raising his 6 year old son while being addicted to drugs/alcohol. Finally, lay evidence is also included in the Appellant’s claim file. In an October 2009 lay statement submitted by the Appellant’s spouse, she reported the Appellant’s symptoms include paranoia; going in and out of thoughts; lack of comprehension/ability to communicate in a comprehensible manner; isolation; and rage. (The Board notes an October 2009 record from the St. Louis VAMC reflects the Appellant’s wife works as a mental health professional with no specific title rendered.) At the July 2012 Board hearing in this matter the Appellant testified that in the military, he had a nervous condition in that he was afraid when he’d be in the woods training and afraid of people in the dorms. He stated this came on suddenly after he got there, and he used drugs and alcohol to cope with what he was feeling. He stated he saw mental health/psychiatrist in service and has been receiving psychiatric treatment since discharge. The Appellant’s spouse testified that the Appellant said it started when he was in the military because of the things he was going through in the military. She described him as being like Dr. Jekyll and Mr. Hyde. Upon review of the record, the Board finds, at the outset, that service connection may not be awarded for alcohol or drug abuse. See 38 U.S.C. §§ 1110, 1131 (no VA compensation shall be paid if the disability is the result of the veteran’s own willful misconduct or abuse of alcohol or drugs); see also 38 U.S.C. § 105(a). The Board finds that it is clear from the DD214 and the Appellant’s military personnel record that he was discharged due to alcohol or drug abuse. As such, he may not be awarded service connection on this basis. Further, upon review of the substantial private and VA treatment records in this matter, the Board notes there is no competent and credible evidence that the Appellant’s psychiatric disorder, however diagnosed, manifested during service or to a compensable degree in the first year following the Appellant’s separation from service. Notably, the first evidence of a psychiatric diagnosis (major affective disorder) and treatment occurred in 1990, over 9 years after separation from service. In addition, it appears that the varying psychiatric disorders diagnosed in these treatment records are not done in isolation – they are accompanied by diagnoses related to substance abuse for which, as noted above, the Appellant cannot be service-connected. Finally, the Board notes that in each of the medical opinions obtained in this matter, including the Addendum opinions, none of the examiners found a nexus between the Appellant’s psychological disorder and his military service. Likewise, none of the Appellant’s private or VA treatment providers noted a nexus between the Appellant’s psychological disorder and his military service. Consequently, service connection for a psychiatric disorder on the basis that such became manifested in service and persisted, or on a presumptive basis, or on the basis that it is otherwise related to service, is not warranted. The Board has also considered the Appellant’s lay statements, as well as that of the Appellant’s spouse. While the Appellant and his wife have both testified that the Appellant had symptoms of a psychiatric disorder since he got out of the service, the Board notes that while they are competent to report the Appellant having experienced symptoms of a psychiatric disorder, they are not competent to provide a diagnosis, or to determine the etiology of these symptoms. The issue is medically complex, as it requires knowledge of interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). In light of the above, the Board finds that the preponderance of the evidence is against finding that the Veteran has an acquired psychiatric disorder, however diagnosed during the appellate period, that is due to service. As discussed above, the weight of the competent and probative medical evidence does not establish that any acquired psychiatric disorder, however diagnosed, is linked to his military service. Since service connection requires competent evidence of a nexus between the current disability and service, service connection must be denied. (Continued on the next page)   In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the Appellant’s claim of service connection, that doctrine is not helpful to the Appellant. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). M. Mills Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Jiggetts The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.